The Family and Medical Leave Act (FMLA) allows certain employees the right to take up to 12 weeks of unpaid leave during a 12 month period. period. This leave is often taken when an employee has a serious medical condition or is suffering from a disability. When returning to work, or when an employee’s disability prevents him or her from returning to work, he or she has certain rights. When these rights are not upheld by an employer, an employment attorney can help wronged employees take action. The rights returning employees can expect are described in detail below.
When employees return from FMLA leave, they have the right to get their old jobs back. The employer must return them to their previous positions. If that is not possible, the employer must place the employee in a comparable position that is the same in every important aspect to the prior position, such as wages, benefits, job duties, and worksite. This reinstatement must be made immediately when the employee comes back to work, although the employer can request notice of an employee’s return.
There are certain instances in which employers can deny reinstatement. For example, if the employee’s entire department was laid off during the leave, sometimes referred to as a reduction in force or RIF, the employer does not have to reinstate the employee. Additionally, if the employee is within the top 10% of earners in the company within 75 miles of the worksite, and reinstatement would cause the employer great economic harm, they can also deny reinstatement. The employee must be told about this possibility before taking FMLA leave.
Upon an employee’s return from FMLA leave for a disability, the employer must provide the employee with the same pay as before taking the leave. This not only applies to wages but also to regular raises. For example, if an employer provides an annual cost of living, returning employees must also receive that raise, even if they were away when it was distributed.
In the case of raises based on performance, an employer may not have to provide the raise if they did not provide it for other employees off from work for other types of leave.
In addition to similar wages and raises, employees returning from FMLA leave also have the right to have their benefits restored. These are subject to any changes that took place within the company while the employee was on leave. For example, if the company changed their life insurance plan while the employee was out, that employee is entitled to receive benefits under the new plan, not the old one, when returning to work.
While many people on FMLA leave are excited about the opportunity to go back to work, not everyone recovers from a disability with the 12-week period FMLA allows. When this is the case, employees should speak to an employment attorney. Under the Americans with Disabilities Act (ADA), employees might qualify for an extended leave of absence as a reasonable accommodation if they request it and if there is a specific date for returning to work. The FMLA and ADA sometimes overlap.
If you are about to return to work after taking FMLA leave for a disability, or you already have returned to work, it is important to understand your rights. If your employer has refused to uphold these rights, you need the help of our Columbus employment attorneys. At Marshall Forman & Schlein LLC, we can advise you on the steps you may be able to take to keep you from losing your job or determine if your rights have been violated. Call us today or contact us online so we can begin evaluating your case.
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